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- I am particularly grateful to be accorded the honour and privilege of giving this year’s Lionel Cohen Lecture as it enables me to examine the position of the Judiciary within the State.
The times in which we live: 2017
- Some events in the past year or so have made this opportune. First, in the UK and in other countries, the judiciary has been drawn into what some have characterised as political decision-making – the characterisation used by those who oppose the decision as being a decision made not on the law, but for political or other impermissible purposes. What, however, may be of greater concern, certainly in the UK and in other countries, is the unprecedented nature of attacks made on the judiciary for such decisions by those who characterise the decisions as political.
- Second, the past year or so has also seen, as far as England and Wales is concerned, the completion of a decade after the coming into effect of the new constitutional position of the judiciary under the Constitutional Reform Act 2005 (the 2005 Act) and the creation on 9 May 2007 of the Ministry of Justice, with much wider responsibilities than the old Lord Chancellor’s Department and its short time successor, the Department for Constitutional Affairs. The 2005 Act secured three major constitutional reforms, each of which sought to introduce a more principled commitment to the doctrine of separation of powers than had previously been the case. First, it removed the Lords of Appeal in Ordinary from the House of Lords through the creation of the United Kingdom Supreme Court. Secondly, it placed judicial appointments under the auspices of the independent Judicial Appointments Commission. And, thirdly, it placed the relationship between the judiciary of England and Wales and the Government on a different footing as the office of Lord Chancellor was shorn of its role as Head of the Judiciary, which was transferred to the Lord Chief Justice. Events have shown, perhaps surprisingly, a lack of understanding of this change in the position of the judiciary within the State and the way in which the relationships between the branches of the State should best work in the public interest of the State as a whole.
- Third, the past year or so has also seen the beginning of a reform programme to the courts and tribunals and to the delivery of justice in England and Wales of a scale that has not been undertaken since the reforms of the late 19th It is a reform programme that is based on the presently available products of the technological revolution. However, the scale and scope of the reform carries with it risks, particularly when it is not possible fully to evaluate at this time what the effect of change (especially through the use of technology) will be on the way in which the judiciary and the legal professions work and on the delivery of justice to the public.
- It is therefore apposite, in the context to which I have referred, to examine two interrelated subjects on the position of the judiciary within the State:
- the governance and cohesion of the judiciary;
- the relationship of the judiciary with the other branches of the State.
- I must, of course, do this primarily by reference to England and Wales, as that is where I have experienced what has happened and is happening, though the basic issues facing the judiciaries in each democracy are very, very similar. I do not think that they are likely to become easier to resolve.
- My view, in summary, is that the judiciary needs to ensure that it has its own governance structure and its own internal cohesion so that it can protect its independent position when performing its role in upholding the rule of law and its ability to carry out its other functions and responsibilities for the benefit of the public. There needs to be a much better understanding of the necessary working relations between the judiciary, in the light of its changed position within the State, and the other branches of State and the media; I include the media as it is often treated as the fourth and, as Burke is believed to have said, as the most powerful branch of the State.